2001 PLP 1495 (YLR)

Through this Constitutional petition the petitioner seeks quashment of F.I.R. No. 13 of 2001 registered on 30-3-2001 under section 161, P.P.C. read with section 5(2)/47, P.C.A. at Police Station, Anti-Corruption Establishment, Okara.

2. The brief facts of the case are that the complainant Muhammad Anwar on 30-3-2001 made a statement under section 154, Cr.P.C. before the Circle Officer, Okara that he is a Security, Incharge for Task Lines and complainant of F.I.R. No.295 of 2000 registered at Police Station Saat. Gharra, Tehsil Okara. Different police officials used to receive illegal gratification in connection with this case who instead of investigating the case on merits against the accused started investigation against the complainant. The complainant moved an application to the Monitoring Cell, Okara who included Amanat Ali petitioner in the Team of this case. According to the complainant, Amanat Ali petitioner demanded illegal gratification and he had paid Rs.8,000 to him in this connection and further amount of Rs. 7,000. has been demanded by him, but he instead of paying the same managed to get a raid conducted on the A.S.-I. A raiding party was constituted and the petitioner was caught red-handed.

3. Learned counsel for the petitioner claims that Muhammad Anwar complainant has sworn an affidavit in favour of the petitioner, hence the case is liable to be quashed. He contends that a false case has been registered against the petitioner who is a police official and the complainant has sworn an affidavit to this effect in favour .of the petitioner, hence now there is no witness to corroborate the occurrence. Thus - further investigation in these circumstances will be an abuse of process of law and the F.I.R. is liable to be quashed on this ground. He further contends that the petitioner has fundamental rights under Articles 4 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973, to be treated equally before the law. 4. have heard the learned counsel for the petitioner at length and perused the documents attached alongwith this petition. The complainant made a statement under section 154, Cr.P.C alleging therein that the petitioner who is an A.S.-I. of Police had demanded illegal gratification in connection with investigation of F.I.R. No.295 of 2000 of Police Station Saat Gharra. The complainant has specifically alleged that he had already paid an amount of Rs.8,000 to the petitioner and further amount of Rs.7,000 had also been demanded by him. He requested for conducting a raid. The District Magistrate constituted a raiding party and the amount was passed on to the petitioner who was caught red-handed at the spot and the amount of illegal gratification received by him was also recovered. The contention of the learned counsel for the petitioner that the complainant has sworn an affidavit exonerating the petitioner is sufficient to quash the F.I.R is not tenable. The complainant himself made a complaint and his statement was also recorded by the Magistrate before raid. The currency notes were duly marked by the Magistrate and then those were handed over to the complainant who went to the place where the petitioner also came and received the said amount. Thereafter, the Magistrate introduced him and recovered the same amount which was noted in the raiding report before the conducting of the raid. The petitioner who is a police officer seems to be succeeded in obtaining the affidavit of the complainant in his favour by misuse of his official capacity and has tried to exonerate him from the commission of the crime. This fact alone is not sufficient to quash the F.I.R. in a raid case. Firstly because the affidavit is not a statement recorded under sections 161, Cr.P.C. or 164, Cr.P.C., thus cannot be considered for the quashment of the F.I.R. The consistent statement of the complainant made before the Investigating Officer and then before the Magistrate cannot be discarded at this stage by the affidavit allegedly sworn by the complainant and the same cannot be made the basis for the quashment of F.I.R. Rather it seems that the petitioner has tried to tamper with the prosecution evidence. The affidavit can only be considered at the time of trial by the Court when the complainant will be subjected to cross-examination by any of the parties. In Nazir Ahmed v. The state (PLD 1977 Lah.1261), the affidavit sworn in favour of the accused was not taken into consideration as it was held that it is neither a statement under section 161, Cr.P.C. nor 164, Cr.P.C Similar view has been taken in judgments reported as Liaqat Ali v. The State (1995 MLD 1254 and Mst. Bushran Bibi v. Nisar Ahmad Khan and others (PLD 1990 SC 83). Even at the trial after the recording of the evidence if the complainant makes a statement in favour of the accused can be ignored as the factum that the raid was arranged on the statement of the complainant and after the noting down of the denomination of notes, those were handed over to the complainant who passed on the same to the accused which were subsequently recovered from the accused prima facie will be a strong circumstance against the accused, if he fails to prove the case otherwise. In these circumstances the onus shifts upon the accused to explain how he had received the said money. Reliance is placed on Abdul Ghafoor v. The State (PLD 1996 Lah. 17).

5. Learned counsel for the petitioner has failed to make out any case for the quashment of the F.I.R. This petition has no merit and is accordingly dismissed in limine H.B.T./A-257/L Petition dismissed.